AKHILA DEHURY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The impugned judgment and order dated 17.5.2003 passed by the learned, Additional Sessions Judge (I), Dhenkanal in S.T. Case No. 44 of 2002 (16 of 2002) convicting the appellant for commission of offences under Sections 302 and 324 of Indian Penal Code (for short 'the I.P.C.') and sentencing him to undergo imprisonment for life under Section 302 of the I.P.C. and to undergo imprisonment for six months under Section 324 of the I.P.C. has given rise to this appeal. Nine accused persons were charge sheeted for commission of offences under Sections 147/148/323/307/302/149 of the I.P.C. Out of the said nine accused persons, the appellant was convicted for commission of offences under Sections 302 and 324 of the I.P.C., and accused Jaganath Dehury was convicted for commission of offence under Section 324 of the I.P.C. only. Rest of the accused persons were acquitted of the charge.

(2.) The case of the prosecution, as revealed from the record, is that deceased Kanhu Dehury, the injured Dhani Dehury P.W.6, Nitei Dehury (since dead) and Basu Dehury as well as accused persons were residing in Sabarasahi of village Rathapada and they are also closely related to each other. The prosecution group and group of the accused persons were on inimical terms in relation to passage lying adjacent to their house. It is alleged that on 17.4.2000 in the afternoon, a quarrel ensued between accused Ghana Dehury and P.W.6 Dhani Dehury. The deceased Kanhu Dehury came to the spot and asked accused Ghana Dehury not to quarrel. Since the injured group put a fence on the passage and asked the accused group not to use the passage, the accused Jagannath Dehury went and removed the fence to which P.W.6 protested. At that point of time accused Ghana and Jaga called other accused persons who came to the spot being armed. Thereafter, it is alleged that three accused persons caught hold of the deceased and the present appellant dealt a tangia blow on the neck of the deceased as a result of which he fell down and succumbed to the injuries at the spot. Thereafter, it is alleged that accused persons assaulted to Nitei Dehury (since dead), P.W.6 and some others and caused hurt to them. The wife of the Dhani Dehury namely, Smt. Kuma lodged the F.I.R. at Bhapur Out Post at about 3.30 P.M. which was transmitted to Sadar Police Station, Dhenkanal and a case was registered for commission of offences under Sections 147/148/323/307/302/149 of the I.P.C. On completion of investigation, charge-sheet was submitted for commission of the said offences.

(3.) The prosecution in order to establish the charge examined as many as twenty witnesses. Out of the twenty witnesses examined on behalf of the prosecution, P.W.1 is the wife of P.W.6 and is also an injured eye-witness to the occurrence. She had lodged the F.I.R. P.W.2 is the wife of Nitei who had sustained injury during the incident but by the time of trial he had already expired. This witness is also an eye-witness to the occurrence, P.W.3 is an independent witness who had also seen the assault on the deceased and other witnesses. P.W.4 is the witness before whom the appellant is alleged to have made extra judicial confession. P.W.5 is a seizure witness who was declared hostile. P.W.6 is the husband of P.W.1 and an injured eyewitness to the occurrence. P.W.7 is a witness to seizure in Ext.2. P.W.8 is a constable who accompanied the dead body of the deceased for post-mortem examination. P.W.9 is a witness to seizure in Ext.3. P.W 10 is a Scientific Officer who visited the spot after the occurrence. P.W.11 is the doctor who conducted the post-mortem examination. P.W.12 is a witness to inquest. P.W.13 is a seizure witness who turned hostile. P.W.14 is the doctor who examined P.W.1 on police requisition. P.W.15 is a post-occurrence witness who had scribed the F.I.R. but was declared hostile. P.W.16 is a constable who had also accompanied the deceased for post-mortem examination. P.W.17, an independent witness, was declared hostile and similarly P.W.18, another independent witness, was also declared hostile. P.W.19 is the doctor who examined P.W.6 on police requisition and P.W.20 is the investigation officer. The plea of accused persons was denial of the prosecution case and two witnesses were examined on behalf of the defence to prove that in course of the incident some of the accused persons have also received injuries.